Buried in the New York Times article on the White House-GOP detainee treatment compromise was this:
The senators agreed to a White House proposal to make the standard on interrogation treatment retroactive to 1997, so C.I.A. and military personnel could not be prosecuted for past treatment under standards the administration considers vague.
I “fell over when I read it,” as Sen. Lindsey Graham (R-SC) might say. Can that be so? I thought of the horrors at Abu Ghraib. Why would such past violations need to be excused?
I checked a copy of the bill introduced by Sen. Bill Frist (R-TN) which contained the language. Here’s what I found:
The compromise proscribes a select list of extreme no-no’s for the handling of detainees, including murder, rape, biological testing, maiming and mutiliation. The Geneva Conventions bans broad categories of behavior, such as “humiliating and degrading treatment.”
According to the agreement, if you handled detainees anytime between now and Nov. 26, 1997, and treated them in ways that violated the Geneva Conventions — but didn’t violate any of the no-no’s outlined in the “compromise” — you can’t be criminally prosecuted under the War Crimes Act.
Who would benefit? Civilian contractors working the K-9 division at Abu Ghraib, for one. And of course, CIA officers or other civilian employees who engaged in “extreme” interrogation tactics.
It’s also likely to be good news for any civilian officials who may have ordered, approved or condoned such treatment during that period. No need to keep that criminal defense lawyer on retainer, boys. Take the kids to Disney World.
I don’t think it helps military personnel who were unlawfully heavy-handed with detainees, despite the New York Times’ reporting. The compromise doesn’t seem to affect the Uniform Code of Military Justice, under which I would expect them to be tried. The UCMJ has always barred extreme treatment of prisoners.